HKSAR v. WARIS MUHAMMAD

HCMA 260/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 260 OF 2013

(ON APPEAL FROM STCC 2835 of 2012)

____________

_______________

J U D G M E N T

_______________

1. The appellant pleaded guilty to one count of Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115. He was sentenced to 14 months’ imprisonment and appeals against that sentence. The appellant, who appeared in person, relied on the general ground of appeal that his sentence was too severe.

Facts

2. The facts were that the appellant sneaked into Hong Kong from Mainland China in February 2007, but it was only on 23 June 2009 that he was arrested by the police for illegally remaining.  He immediately filed a torture claim and was released on an Immigration recognizance on 5 July 2009, after being detained for 13 days in administrative detention.

3. On 28 September 2011, the appellant was convicted of one count of Robbery and was sentenced to 2 years’ imprisonment. He was discharged from prison on 22 June 2012 and was further detained by the Immigration Department for 25 days after his discharge from prison. 

4. The appellant had a clear record in Hong Kong at the time of this offence.

5. Grounds of mitigation advanced by the appellant in person before the magistrate were as follows:

(1)    he was not aware that it was an offence to be an illegal immigrant;

(2)    he was misled by his agent in previous dealings;

(3)    he had no intention of committing this offence;

(4)    he wanted to return to Pakistan as soon as possible because his fiancée had problems and he wanted to get married.

6. The magistrate followed the sentencing guidelines in The Queen v So Man King [1989] 1 HKLR 142 and adopted a starting point of 15 months’ imprisonment after a guilty plea.  That sentence has already been discounted for plea.  The magistrate gave the appellant a discount of 1 month further to take into account his time in administrative detention, and imposed a sentence of 14 months’ imprisonment. 

7. Subsequently the appellant applied to the magistrate for a review of sentence and at the hearing on 25 March 2013, he submitted that:

(1)    many of his friends were given sentences of between 8 and 12 months for their convictions on similar charges;

(2)    some of his friends were sentenced to 15 months on charges of working illegally, so he considered that his sentence was unfair as he was charged only with being an illegal immigrant;

(3)    he thought 2 months should be deducted from his sentence because he was detained by the Immigration Department for a total of 39 days on two different occasions.

8. The magistrate found no basis for reducing his sentence at the review hearing.  He pointed out that he had already taken the period of administrative detention into account and that a proper sentencing discount had been given to the appellant. 

9. On appeal the appellant advanced the same grounds and same complaints as he put before the magistrate at the review.  I am satisfied that the magistrate correctly sentenced the appellant on the basis of So Man King.  In his discretion he had already taken the time of administrative detention into account and had given almost full credit for the two periods of administrative detention.  There were no strong humanitarian grounds advanced by the appellant which would justify interference with his sentence.  No other grounds were advanced which would justify any additional reduction in sentence.

10. Accordingly this appeal against sentence is dismissed.